The Trumpists' Cynical Use of the Unitary Executive Theory

 by Michael C. Dorf

My latest Verdict column examines the all-but-endorsement of the unitary executive theory by Justices Thomas, Kavanaugh, and Barrett in Friday's SCOTUS decision in United States ex rel Polansky v. Executive Health Resources. As I explain in the column, the case concerns the scope of the government's power to dismiss a False Claims Act lawsuit that is originally brought by a whistleblower on behalf of the government when (as in Polansky) the government decides that pursuing the claim is not worth its while. What interests me is the dissent by Justice Thomas--joined in this respect by Kavanaugh and Barrett in a concurrence--contending that in a future case the Court should consider whether such so-called qui tam suits are consistent with Article II. As I note in the column, Thomas leaves open the theoretical possibility that he would vote to uphold qui tam actions, but he pretty strongly tilts in the other direction. He does so by relying on the unitary executive theory.

Although not relevant to my analysis, qui tam actions hold a special place for me--not because I was ever involved in one, but because when I was a 3L in the fall of 1989, the final round moot court problem involved the constitutionality of qui tam actions. My team was assigned to argue that they're unconstitutional as a violation of separation of powers and Article III--the latter a position so radically right-wing that it was later rejected by the Supreme Court in an opinion by Justice Scalia! But we had fun with the case along the way, and because the universe is a strange place indeed, video of the final round (including my much younger self with much more hair) lives on YouTube. But I digress.

In the balance of this essay, I want to talk about a recent NY Times story about the unitary executive that, coincidentally, appeared the day before SCOTUS handed down Polansky. The big reveal in The Radical Strategy Behind Trump's Promise to 'Go After' Biden certainly is not that in the event that Trump regains the White House, he intends to use the Justice Department and other government agencies to persecute Biden and his other political rivals and perceived enemies. After all, as the Times story acknowledges, deploying government for partisan and personal ends was already Trump's modus operandi: "In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control." The shift, the story's authors contend, is that Trump "is now unabashedly saying he will throw that effort into overdrive if he returns to power." And, they say, Trump intends to rely on a "maximalist view" of the unitary executive to justify this supposed shift.

To my mind, that framing misses the mark. This is mostly a story about hypocrisy, not about the opportunistic use of a constitutional theory.

(1) Is there anything new here?

The notion that the federal government can be turned to the partisan and personal ends of the incumbent president dates back at least to Andrew Jackson's spoils system, which was not merely about rewarding political allies but also about punishing political foes. Given Trump's well-known admiration for Jackson the populist/racist, it's not entirely surprising that Trump would emulate Jackson in treating federal government power as available to serve his own partisan and personal ends.

To be sure, the spoils system punished enemies by stripping them of their jobs, not by prosecuting them. But Trump is not the first to think of criminal prosecution of political enemies as a perk of the presidency. Richard Nixon did not merely compile an enemies list. He sought to weaponize the IRS to audit his perceived political enemies--which could potentially turn up evidence of additional tax liability and even prosecutable offenses. Indeed, presaging Trump (about which more below in (2)), Nixon even asserted that he had been unfairly targeted by the IRS and FBI, claiming that "rough tactics" of the sort he used were ubiquitous in American politics.

And of course, in office Trump himself repeatedly sought to weaponize government--including the Justice Department--against his political rivals, most notoriously by using his position as representative of the United States government to foreign sovereigns in order to pressure Ukrainian President Volodymyr Zelensky to announce an investigation into Hunter and Joe Biden. Trump expressly asked Zelensky to talk to Rudy Giuliani "along with the Attorney General" as part of the scheme--which eventually led to his first impeachment.

Contrary to the Times story, neither is there anything new about what Trump is now "unabashedly saying." In public, Trump repeatedly characterized his attempted extortion of Zelensky as a "perfect phone call." In addition, Trump repeatedly and very publicly criticized his first Attorney General, Jeff Sessions, for recusing himself from the Russia investigation, making crystal clear that he expected the Justice Department to act as his personal representative. "Where's my Roy Cohn?", Trump asked rhetorically, summing up his view of the relation between a president and the levers of government power.

If there is something different about Trump's potential use of DOJ and other government agencies to attack his enemies in a possible second term, it's not Trump's intent or how he speaks about the matter. It's that a second-term Trump will be unconstrained by more mainstream Republicans in high office. Instead, a second-term Trump administration would likely be staffed by the likes of competent maniacs like Mike Flynn, John Eastman, and Jeffrey Clark, perhaps supplemented by no-longer-if-ever-competent maniac/opera-buffa characters like Rudy Giuliani, Sidney Powell, and Mike Lindell. Presidential pardons will be issued to those who need them and if some of these characters are too far out there even for a Senate likely to be in Republican hands, Trump will once again skirt the Federal Vacancies Reform Act to give them "acting" positions.

(2) Unitary Executive

So where, if anywhere, does the unitary executive theory fit in this story? The short answer is it doesn't really. The theory posits that the president--as the repository of all executive power--is constitutionally entitled to control anyone who exercises such power. It is thus typically invoked as the basis for invalidating statutory constraints on the president's power to fire people such as heads of independent agencies. Or, as in the Polansky case, the unitary executive theory fits into Justice Thomas's vision as a means of invalidating the delegation of what he deems executive power to a private actor not subject to presidential control.

However, there aren't currently any substantial statutory constraints on presidential supervision of the DOJ. While "independence and impartiality" are among the chief "values" of the Justice Department, that is as a matter of internal policy and norms, not statute. If Congress were to mandate insulation of prosecutorial decisions from political control, that would bump up against the unitary executive theory. Congress did just that in the Ethics in Government Act, but SCOTUS upheld the independent counsel in Morrison v. Olson over a spirited unitary-executive dissent by Justice Scalia. Perhaps the current Court might reach a different result, but we won't find out because the independent counsel provision expired in 1999 and wasn't renewed. Special prosecutors like Robert Mueller and Jack Smith are now appointed pursuant to Justice Department guidelines and political pressure. The practice could change in a second Trump administration without any invocation of the unitary executive theory.

None of that is to say that the Times reporters are wrong that Jeffrey Clark and the other lawyers surrounding Trump don't also believe in an extreme version of the unitary executive theory. And the same love of concentrated executive power that drives that belief undoubtedly drives their view that, as a matter of policy, the president should be able to direct prosecutorial decisions by DOJ, including for partisan political or personal ends. But the authoritarian vision of the presidency drives both the endorsement of the unitary executive theory and the view that presidents get to use the organs of government for partisan/personal goals. The theory itself isn't the basis for the Roy Cohn/Louis XIV (l'état, c'est moi) view of executive power.

(3) Hypocrisy

Despite its problematic framing, the Times story does point to the fundamental hypocrisy of the Trumpists: "They are condemning Mr. Biden and Democrats for what they claim is the politicization of the justice system, but at the same time pushing an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations." That statement has too many qualifiers. Might do this in the future? Given that Trump has already shown his eagerness to politicize the justice system and just about every other element of government, there is little doubt but that he will abuse government power in this way if he should regain it.

Is there an argument that the Trumpists aren't being hypocritical? There are circumstances in which one resorts to means one condemns in others. The use of force in self-defense is an obvious example.

That's in theory, however. In reality, the Trumpist argument is preposterous. As Eric Levitz amply documents in a recent New York article, "the notion that the DOJ is selectively prosecuting Trump for political reasons is not merely wrong but the very opposite of the truth: As a matter of fact, the federal government has been affording Trump extraordinary leniency, likely as a product of political considerations." So a second Trump administration that uses DOJ to prosecute Biden as payback would be relying on a false narrative.

And even if there were any truth to the idea that Biden is directing AG Merrick Garland who is in turn directing special counsel Jack Smith to prosecute Trump for political reasons, that would hardly justify a tit-for-tat response. The self-defense analogy doesn't work. Using force in self-defense against force used aggressively is permissible not because the initial unjustified use of force by A authorizes B in turn to use unjustified force but because B's use of force in self-defense is justified (if necessary and proportionate). By contrast, if it's wrong for President X to politicize the Justice Department then it's wrong for President Y to politicize it--even if President Y does so only to go after former President X. If President X committed a crime by politicizing the Justice Department, then a future administration would be warranted in holding X accountable for doing so, but if it did so it would not be politicizing the Justice Department in retaliation; the prosecution of X under those circumstances would simply be justified, not political.

* * *

In the end, then, the Times story doesn't report any real news. The unitary executive theory doesn't play a causal role in the plans for a second Trump term, and those plans do not include anything different from the first term: using the organs of government to settle personal scores and for partisan ends; lying about political opponents by falsely accusing them of what Trump has actually done; and shameless hypocrisy.